Morrow v. Morrow

• Citation: 87 S.W. 590,113 Mo.App. 444
• Parties: MATTIE MORROW et al., by JOHN W. GROSS, Guardian, etc., Plaintiffs in Error, v. WILLIAM MORROW et al., Defendants in Error
• Decision Date: 08 May 1905
• Court: Court of Appeals of Kansas

87 S.W. 590

113 Mo.App. 444

MATTIE MORROW et al., by JOHN W. GROSS, Guardian, etc., Plaintiffs in Error, v. WILLIAM MORROW et al., Defendants in Error

Court of Appeals of Missouri, Kansas City

May 8, 1905

Error to Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Dysart & Mitchell for plaintiffs in error.

(1) The court erred in sustaining the demurrer to the plaintiff's petition and in rendering a general judgment for the defendants. This was not a passive or discretionary trust but an active trust requiring duties and supervision of a trustee. Perry on Trusts (5 Ed.), sec. 248. (2) "In equity cases a demurrer to a petition should not be sustained if the plaintiff is entitled to any relief whatever on the case stated in the petition," and when equity obtains jurisdiction of a case, the court will proceed to decide all matters arising in the case. Tanner v. Railroad, 180 Mo. 1, 26 (syllabus 8). (3) A trust never fails for the want of a trustee. The appointment of a trustee, and the interposition to preserve a trust fund, where the same has been mismanaged or misappropriated in violation of the terms of the trust, are matters peculiarly of equitable cognizance. Perry on Trusts (5 Ed.), secs. 275, 276a; Gartside v Gartside, 113 Mo. 348, 356 et seq. (4) As further establishing the jurisdiction of a court of equity in the case at bar, the following Missouri cases are cited: Yore v. Crow, 90 Mo.App. 562; Newton v. Rebenack, 90 Mo.App. 650, 670; Webb v. Hayden, 166 Mo. 39, 49; State ex rel. v. Hunt, 46 Mo.App. 616; Hitch v Stonebraker, 125 Mo. 128; Brandon v. Carter, 119 Mo. 572, 581; St. Louis v. Wenneker, 145 Mo. 230, 236; Chambers v. St. Louis, 29 Mo. 543; Gartside v. Gartside, supra. (5) That the petition states a cause of action in the plaintiffs, and that they have an interest in the trust fund mentioned, is beyond question. But the defendants claim that the jurisdiction in the case belongs exclusively to the probate court of Macon county. This contention is without merit. See authorities supra. (6) The probate court is the creature of legislation and can only exercise the power and jurisdiction conferred upon it by the statute. R. S. 1899, secs. 4580 and 4581; Bramell v. Cole, 136 Mo. 201, 210; Estate of Glover & Shepley, 127 Mo. 153, 163; Church v. McElhinney, 61 Mo. 540, 543; Church v. Robberson, 71 Mo. 326, 334 et seq.; Mead v. Jennings, 46 Mo. 91, 94; Coil v. Pittman, 46 Mo. 51; Patterson v. Booth, 103 Mo. 402, 417, et seq.; Butler v. Lawson, 72 Mo. 227, 245 et seq.; Holliday v. Noland, 93 Mo.App. 403; In re Final Settlement of Rickenbough, 42 Mo.App. 328, 342.

Robt. W. Barrow for defendants in error.

(1) Only a trustee lawfully appointed can sue for the money in any view of it. Plaintiffs have no capacity to sue for this money. Neither the minors nor their guardian have any right to sue for or receive this money. Webb v. Hayden, 166 Mo. 39; Gibbons v. Gentry, 20 Mo. 468, l. c. 477; Meyers v. Hale, 17 Mo.App. 208; Simpson v. Erisner, 155 Mo. 157; Simpson v. Jennings, 163 Mo. 332; Walton v. Ketchum, 147 Mo. 209; Schifman v. Schmidt, 154 Mo. 204. (2) Petition discloses suit is prematurely brought. Clarke v. Sinks, 144 Mo. 448. (3) Suit cannot be maintained against the heirs of Jefferson Morrow to refund property received as heirs until plaintiff first exhausts their remedy against the estate, and the petition does not allege that all the assets have been collected or fully administered and a deficiency found. Pearce v. Calhoun, 59 Mo. 271. (3) The petition discloses that administration is still pending and the suit is prematurely brought. (4) Our statute has provided a procedure in probate matters and the administrator must follow it, and the jurisdiction of the probate court is exclusive. Lilly v. Menke, 126 Mo. 190; Pearce v. Calhoun, 59 Mo. 271; French v. Stratton, 79 Mo. 560; Bauer v. Gray, 18 Mo.App. 173; Hellman v. Wellenkaup, 71 Mo. 407; Ridgeway v. Kerfoot, 22 Mo.App. 661; Wernecke v. Kenyon, 66 Mo. 275; Titherington v. Hooker, 68 Mo. 593; Dodson v. Scroggs, 47 Mo. 285. (5) Plaintiff in asking the removal of the administrator on the allegation of hostility overlooks the controlling fact that the administration is under control of the probate court--a court which has authority by its orders of distribution and otherwise to protect plaintiffs' rights fully, and plaintiffs' authorities do not apply to the facts in this case. (6) If a will creates a trust and names no trustee the executor of the will is the trustee. Marshall v. Meyers, 96 Mo.App. 643; Webb v. Hayden, 166 Mo. 39.

OPINION

JOHNSON, J.

The petition in this action, omitting caption and signature, is as follows:

"For cause of action against the said defendants, the plaintiffs, by their said guardian and curator, state: That on the 17th day of March, 1900 Jefferson Morrow, Sr. , departed this life testate in the county of Macon and State of Missouri, leaving surviving him the following named children and heirs, to-wit: All the said named defendants, and also a daughter, Celia Miller, who has since died, who left surviving as her only children and heirs the said defendants, John W. Miller, Jr., Thomas J. Miller, Jr., James W. Miller, Jr., Rosa T. Chope, Minerva May Evans, Sarah Jane Vickroy, Ella D. Neel, and also these plaintiffs, who are the minor children and only heirs of Charles Morrow, who was a son of the said testator, Jefferson Morrow, Sr.; that said plaintiffs are minors under the age of fourteen years; that the said Mattie Morrow was thirteen years of age in July, 1902, and that the said Benjamin R. Morrow was eleven years of age in September, 1902; that the said John W. Gross is the public administrator of the county of Macon and State of Missouri, duly elected and qualified as such, and as such has charge of the estate of the said plaintiffs under an order of the probate court of the said county of Macon, and he, the said John W. Gross, is the guardian and curator of the estate of the said plaintiffs, duly appointed and qualified under and pursuant to the orders of the probate court of the said county of Macon, and these plaintiffs bring this suit by their said guardian and curator, the said John W. Gross.

"Plaintiffs further state that the said Jefferson Morrow, Sr., made and executed his last will and testament on the 11th day of August, 1898, and afterwards died on the 17th day of March, 1900, and the said will was duly admitted to probate on the 27th day of March, 1900, a copy of which said will and the probate thereof is herewith filed as an exhibit in this case.

"Plaintiffs further state that prior to the execution of the said will the said testator owned a large amount of real estate in Macon county, Missouri, to-wit: about 2,000 acres worth about $ 50,000; that shortly before the execution of the said will and in contemplation of the said will, the said testator divided up and apportioned all the real estate among his then living sons and daughters, seven in number, and conveyed the same by deeds in parcels, no part of which was given or conveyed to these plaintiffs.

"Plaintiffs further state that the said will contains the following provisions in favor of these plaintiffs, numbered items 5 and 6, to-wit:

"'Fifth, I give and bequeath to Benjamin Morrow, the son of Charles Morrow, my deceased son, five hundred dollars, to be given to said Benjamin Morrow, my grandson, when he becomes twenty-one (21) years old.'

"'Sixth, I give and bequeath to Mattie Morrow, the daughter of my son Charles Morrow, deceased, five hundrend dollars, to be given to her, said Mattie Morrow, my granddaughter, when she becomes eighteen years old; and before any other legatee is paid or given anything at all, the thousand dollars bequeathed to my said grandchildren, the children of my deceased son, Charles Morrow, are to be set aside and separately appropriated; if said Mattie Morrow dies before she becomes eighteen years old, said Benjamin Morrow is to have the five hundred dollars ($ 500) bequeathed to her if he lives to become twenty-one years old; if said Benjamin Morrow dies before said Mattie Morrow becomes eighteen teen years old, and said Mattie Morrow becomes eighteen years old, said Mattie is to have the five hundred dollars bequeathed to said Benjamin Morrow; if said Benjamin Morrow and Mattie Morrow die before said Mattie Morrow becomes eighteen years old, said thousand dollars to be equally divided among my following named seven children, to-wit: William Morrow, Jefferson Morrow, Jr., Johnson Morrow, Celia Miller, Minerva Banta, Mary Clemson, and Rebecca Neel; said Mattie Morrow is not to have anything of my estate unless she lives to be eighteen (18) years old and becomes eighteen years old, and said Benjamin Morrow is not to have any of my estate unless he becomes twenty-one years old and lives to the age of twenty-one years.'

"Plaintiffs further state that Eli J. Newton was appointed executor in the will of the said testator, who duly qualified and took charge of the personal property and assets of the said testator and continued to administer the same until the 17th day of August, 1900, on which date he made his final settlement and resigned as executor. And afterward, on the--day of August, 1900, on the petition and at the request of the defendants, W. J. Magee, the then public administrator of Macon county was duly appointed as the administrator de bonis non with the will annexed of the said estate in place of the said Eli J. Newton, and by order of the probate court, the said W. J. Magee took charge of the said estate and proceeded to administer the same until he was adjudged to be a person of unsound mind, on or about the--day of , 1902; that on...